Corps de l’article

Foreword: A Swinger’s Guide to Montreal

The bouncer at Coeur à Corps will not let you in unless you answer in the affirmative when he asks if you and your companion are a “liberated couple”. Once inside, Coeur à Corps offers a modest bar and dance floor. “[E]very half hour a black translucent curtain automatically closes around the dance floor at which time the disc jockey plays—for 8 to 12 minutes—lascivious musical pieces. During these periods ... the dance floor fill[s] up with people ... [who engage] in sexual acts, ranging from caresses to masturbation.”[1] On a busy night you can expect between sixty and one hundred people on the dance floor at any given time.[2] Don’t forget the cover charge. It’s six dollars per person. Cash only, folks.

For those who like to fly (or rather swing) solo, Coeur à Corps isn’t the establishment for you. The rule is “couples only” at Coeur à Corps. So single swingers might consider the club L’Orage instead. L’Orage is a private club with an annual membership fee that accepts both couples and singles. It is open to members and their guests only. What L’Orage lacks in decor—it consists of “[a] number of mattresses ... scattered about the floor of the apartment”[3]—it makes up for in terms of sexual opportunity. Two doors separate access to the third floor from the rest of the bar, one marked “Privé” and the other locked with a numeric keypad which only members can open. This makes a lot of what goes on at L’Orage much more “involved” than what is usually available at Coeur à Corps.[4]

Oh, and one last thing. You need not worry anymore about police raids at either L’Orage or Coeur à Corps. In 2005, the Supreme Court of Canada refined the definition of indecency under the Criminal Code and quashed bawdy-house convictions against the proprietors of these establishments.[5]

Introduction

Both R. v. Labaye and R. v. Kouri concerned charges against the proprietors of establishments alleged to be bawdy houses. As defined under section 197 of the Criminal Code, a common bawdy house is a “place that is kept or occupied, or resorted to ... for the purpose of prostitution or for the practice of acts of indecency.”[6] Counsel for both Mr. Labaye and Mr. Kouri argued that the acts occurring in these establishments were not indecent under the criminal law. As such, both cases turned on the statutory interpretation of the term “indecent”.[7] The cases were differentiated mainly by the extent to which their activities were publicly accessible. In Labaye, the issue was whether or not the activities of a private members’ sex club were indecent under the Criminal Code. Similarly, the issue in Kouri was whether or not the activities occurring at Coeur à Corps, as a non-members’ club, constituted acts of criminal indecency.

Justice Otis, in her Court of Appeal of Québec decision quashing the trial court’s bawdy house conviction of James Kouri,[8] stated that “[b]etween the aesthetic canons of Alberoni eroticism and the sexual disarray expressed by Houellebecq, in Les particules élémentaires, there is a gulf which the State cannot force citizens to cross in the name of moral conformity and behavioural normality.”[9] The normative assertions about sexual morality that Justice Otis suggests by her juxtaposition of Alberoni’s description of falling in love as the “nascent state of a collective movement involving two individuals”[10] with the sexual promiscuity of Houellebecq’s characters in The Elementary Particles[11] are enormous. But Justice Otis allowed the appeal and acquitted Mr. Kouri. She did so on the basis that “sexual morality is, first and foremost, the result of the responsibility which human beings assume towards [themselves]”[12] and that “... Canadian society, which is pluralist and tolerant, does not condemn sexual modes of expression [that] … are not a source of social harm” and are not offensive.[13] Justice Otis’ decision was affirmed by the Supreme Court of Canada.[14]

Similarly, in Labaye, the majority of the Court allowed the appeal of Mr. Labaye’s bawdy house conviction on the ground that the acts occurring at L’Orage did not constitute indecent acts under the Criminal Code.[15] The majority opinion, written by Chief Justice McLachlin, determined that only activities which pose a “significant risk of harm” will be considered indecent.[16] This type of harm must be contrary to the “norms which our society has recognized in its Constitution or similar fundamental laws,” and incompatible with proper societal functioning.[17] The group sex occurring at L’Orage was not found to interfere with society’s functioning or to perpetuate serious social harm.

In response to the majority’s refinement of the test of indecency under the Criminal Code, the dissent in Labaye stated: “We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected.”[18] Did the dissent exaggerate the potential impact of this decision? Has the Court’s majority decision in Labaye relegated our public sex laws to some sort of normative wasteland in which the state has no recourse to morality-based policies or actions?

In fact, Chief Justice McLachlin’s majority decision does invoke an order of morality. The decision of the Supreme Court of Canada in Labaye very much establishes an understanding of the regulation of public sex based on moral and ethical convictions. However, it is grounded in fundamental social, legal, and political (liberal) values—such as autonomy and tolerance—rather than in sexual morality. So which values are necessary for the maintenance of the kind of society cherished by Canadians? Chief Justice McLachlin relies upon, in order to protect, the fundamental ethical and social considerations enshrined in the constitution and she does so in a manner which continues to recognize the importance of community and collective interests without subjugating minority desires to majoritarian sexual morality.

The structure of Chief Justice McLachlin’s reasoning in Labaye is implicitly supported by certain theories of liberalism, such as Ronald Dworkin’s theory of liberal equality.[19] While relying on principles of liberalism, the majority decision also responds indirectly to the dissent by emphasizing certain common interests protected by the principles underpinning the constitution. Some of these interests are exclusively founded on individual rights; others, as will be discussed in Part II, are interests that can only be experienced collectively. Labaye represents a shift in the relationship between law and sexuality, and it illuminates the possible emergence of a new approach by the Supreme Court of Canada to the regulation of sex—an approach which allows for the legal recognition of pleasure behind, beyond, or outside of legal claims regarding identity, antisubordination, relationship equality, and conventional privacy rights. On a theoretical level, Labaye suggests the possibility of an approach to the legal regulation of sexuality which recognizes the importance of challenging mainstream beliefs about sexuality or subverting certain dominant sexual norms, while maintaining an analysis firmly grounded in principles of liberalism.

I. The Constitution as Custos Morum

The dissent in Labaye suggests that the majority decision strips the Canadian public of the meaning of those social values that it holds most dear. The following section will demonstrate that the majority’s decision can actually be read as very much an attempt to give meaning to and protect (to use the dissent’s words) those “social values that the Canadian community as a whole believes should be protected.”[20]

A. A Standard of Tolerance for the Community

In further advancing a long line of jurisprudence which has attempted to develop objective legal criteria to define indecency and obscenity, Chief Justice McLachlin founded her reasoning in Labaye on the premise that harm is an essential ingredient of indecency. In doing so, she determined that a community’s standard of tolerance would no longer be a salient consideration in determining whether a sexual practice causes harm of the sort that ought to be criminalized.[21]

Prior to the mid-twentieth century, the common law test for indecency and obscenity focused on whether the material or activity at issue would tend to deprave and corrupt other members of society.[22] As Chief Justice McLachlin notes in Labaye, this test stood for almost a century before the Supreme Court of Canada in R. v. Brodie, emphasizing the need for more objective criteria which wouldn’t permit an adjudicator to rely upon his own sexual morality, adopted a definition of indecency based on the community’s standard of tolerance for sexually explicit material.[23] However, the community standard of tolerance test adopted in Brodie was still considered difficult to apply in an objective fashion, so it was eventually revised in R. v. Towne Cinema Theatres Ltd. to incorporate a notion of harm.[24]

In Towne Cinema, the Court held that there are two ways to establish that material is obscene: (1) by showing that the material violates a norm of what Canadians would tolerate other Canadians viewing or doing, or (2) by showing that the material would produce a harmful effect on others in society.[25] Following Towne Cinema, in R. v. Butler, the Court directly incorporated the notion of harm into the community standard of tolerance test: “The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure.”[26] In other words, what the community would tolerate others doing or seeing was to be determined based on how much harm an act or sexually explicit depiction posed. The majority in Labaye suggested that legal test for obscenity evolved from a community standards test to a harm-based one, starting with Towne Cinema and culminating in the Court’s decisions in Butler and Little Sisters Book and Art Emporium v. Canada (Minister of Justice).[27]

Chief Justice McLachlin determined in Labaye that the type of harm identified in Butler (that being “conduct which society formally recognizes as incompatible with its proper functioning”[28]), must be assessed not by community standards of tolerance, but rather by those norms which our society has formally recognized in the constitution or similar fundamental laws:

The inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its fundamental laws, has recognized as essential. Views about the harm that the sexual conduct at issue may produce, however widely held, do not suffice to ground a conviction. This is not to say that social values no longer have a role to play. On the contrary, to ground a finding that acts are indecent, the harm must be shown to be related to a fundamental value reflected in our society’s Constitution or similar fundamental laws ... Unlike the community standard of tolerance test, the requirement of formal recognition inspires confidence that the values upheld by judges and jurors are truly those of Canadian society. Autonomy, liberty, equality and human dignity are among these values.[29]

What Chief Justice McLachlin suggests in Labaye is that the criminal law, when considering or upholding social values, ought to rely upon those values which the whole society agrees upon—namely, those values reflected in the constitution or other fundamental laws. Despite the fact that Labaye did not involve a constitutional challenge but rather a matter of statutory interpretation, the definition of indecency that Chief Justice McLachlin ultimately adopts turns on constitutional law. However, given the structure (and premise) of her reasoning, it makes sense that Chief Justice McLachlin incorporates the constitution into her definition of indecency. In essence, her reasoning relies upon, in order to protect, the fundamental ethical and social considerations enshrined in the Canadian constitution.[30]

B. McLachlin’s Hart of the Community Versus the Devlin Is in the (Sexual) Details

Responding to Chief Justice McLachlin’s reasoning, the dissent in Labaye commented that “the existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct. The existence of fundamental social and ethical considerations is sufficient.”[31] Despite this statement, the dispute between the majority and the dissent in Labaye is not actually over whether social values ought to play a role in making or enforcing indecency laws—both adopt reasoning that turns on an application of social values. Their disagreement is over which social values to rely upon and what role they ought to play in defining indecency.

Whereas the majority’s reasoning turns on the sexual restrictions and standards a society can legitimately impose on its members without compromising broader ethical convictions as articulated by the constitution, the dissent depends on the justices’ perception and interpretation of what sexual mores the majority of Canadians have adopted. This is why the dissent endorses a strikingly quantitative approach to sexual morality. In defining indecency, the dissent suggests that “use can be made of factual evidence, such as surveys, reports or research regarding Canadians’ sexual practices and preferences, and their attitudes toward and levels of tolerance of sexual acts in various contexts.”[32] It is also the reason why the dissent suggests that, contrary to the majority’s opinion, the community’s standard of tolerance remains a salient consideration in identifying acts of indecency, and that “serious harm is not the sole criterion for determining what the Canadian community will tolerate.”[33] The dissent makes this argument on two bases. Firstly, they suggest that morality for the sake of morality—and here they are referring to majoritarian sexual mores—should be permitted to play a role in defining the state’s power to criminalize conduct, regardless of whether there is an associated harm.[34] Secondly, and perhaps alternatively, they suggest that activity which is inconsistent with the community’s sexual morality in and of itself causes harm to the community’s political morality.[35] They argue, in other words, that there is always a harm associated with transgressions of those sexual values held by most Canadians. The former argument concerns issues of the criminal law’s legitimacy and its theory of harm. The latter combines these concerns over legitimacy and harm with an argument about the significance and role of community in the maintenance of political morality.

To fully understand the nature of social harm contemplated by the Court, it is useful to turn to R. v. Malmo-Levine; R. v. Caine, which provides a contextual background to Labaye and Kouri.[36]Malmo-Levine involved a challenge to the criminalization of marijuana based on section 7 of the Canadian Charter of Rights and Freedoms.[37] In this case, the Supreme Court of Canada rejected the argument that the harm principle is a tenet of fundamental justice. They determined that while the presence of harm to others may justify legislative action under the criminal law, the absence of proven harm does not create an unqualified section 7 barrier to criminalization. Two important points on this issue should be noted. First, the harm principle referred to in Malmo-Levine was more akin to the principle as it was conceived by John Stuart Mill than was the harm principle adopted by the Labaye majority.[38] Second, the claim that the harm principle is a tenet of fundamental justice and, therefore, a precursor to the use of the criminal law, is related but not identical to the assertion that some version of the harm principle is the right principle of interpretation to establish the legal definition of a socially or culturally constructed, and value-laden, concept such as indecency. Indeed, the Supreme Court of Canada recognized the validity of this assertion in Butler by incorporating the notion of harm directly into the community standard of tolerance test.

Whether “morality for the sake of morality” is a legitimate foundation for the criminalization of particular sexual acts has been a matter of considerable debate and the focus of a great deal of academic literature.[39] Indeed, the issue as to what extent morality ought to be embedded in the criminal law produced the famous mid-twentieth century exchange between Lord Devlin and H.L.A. Hart—a debate which continues today.[40] At first blush, the disagreement between the majority and minority in Labaye might be characterized simply as a reiteration (or manifestation) of the Hart/Devlin debate. Closer examination reveals that while the dissenting opinion does mirror Devlin’s position, the same is not as true when comparing Chief Justice McLachlin’s reasoning with Hart’s position.

Lord Devlin argued that in the interest of self-preservation, a society must be allowed to coercively restrict sexual conduct that threatens valued social institutions and that is contrary to the personal sexual morality of most members of society.[41] Society, he argued, has a right to enforce certain moral convictions so as to preserve the particular social environment desired by the majority of its members. Devlin’s concern, one shared by the dissent in Labaye, was that without the ability to criminalize conduct that transgressed those personal morals held by the majority of citizens, the moral fibre of a society would crumble.[42] This same rationale is the basis for the Labaye dissent’s suggestion that if the criminal law fails to incorporate the community standard of tolerance test, the values considered worthy of protection by the Canadian community as a whole will be “stripped of any relevance.”[43] Upholding personal morals in the criminal law also grounds the connection the dissent makes between community views on sexuality and “social order”.[44]

Hart responded to Devlin’s argument by suggesting that in the criminal law, a line between private and public conduct must be maintained and that without some associated and provable harm, it would be illiberal for the state to prohibit certain behaviour simply on the basis that the majority is against it.[45] He argued that there is no empirical evidence to suggest that the separation of law and morality would lead to social decay. There is a distinction, he suggested, between morally driven decisions regarding the severity of punishment for a certain act (which may be acceptable) and morally driven decisions to punish that act in the first place (which are not acceptable). Ultimately, the enforcement of morality for the sake of morality is illiberal. Moreover, he contended, morality cannot be instantiated through law. According to Hart, legally coerced morality, or legal moralism, is of no value as a foundational principle of the criminal law.[46]

Chief Justice McLachlin’s approach differs from Hart’s approach in that she does endeavour to instantiate morality—political morality—through law.[47] Hart, relying on utilitarian theory, distinguished between “positive morality” and “critical morality” to question the role of morality in the law. Positive morality referred to “the morality actually accepted and shared by a given social group.”[48] Critical morality referred to “the general moral principles used in the criticism of actual social institutions including positive morality.”[49] For Hart, therefore, the question “is one of the critical morality about the legal enforcement of positive morality.”[50]

In Labaye, Chief Justice McLachlin instantiates political morality in the law by interpreting the bawdy house provision of the Criminal Code on the basis that principles of critical morality are a positive morality. In other words, for Chief Justice McLachlin, critical morality is a positive morality. The distinction may not be surprising given the different constitutional traditions in which Hart’s work and Chief Justice McLachlin’s jurisprudence are situated. The values Chief Justice McLachlin affirms are tolerance and respect for autonomy. She rejects the community standard of tolerance test and establishes in its place a new standard of tolerance: a standard required by the constitution of the community. Chief Justice McLachlin does not jettison “morality for morality’s sake” from the criminal law. She acknowledges that harm to values can, in and of itself, constitute the sort of harm that ought to be prohibited by the criminal law. But she limits the type of values to which she refers; she relies on ethical values which could serve as a common ground for the resolution of other, less agreed-upon values. Namely, those values so cherished by Canadian society that they have been constitutionally entrenched.

While Chief Justice McLachlin’s approach to the role of morality in criminal law differs in this respect from that suggested by Hart, it does find support in the political theory of one of Hart’s students. The structure of her reasoning is very consistent with Ronald Dworkin’s theory of liberal equality, as well as Dworkin’s own position on the role of morality in the criminal regulation of sex.[51]

Dworkin’s theory is premised on the argument that a state is only legitimate if it shows equal concern for the fate of all the citizens over whom it claims dominion.[52] He identifies two principles of human dignity that dominate his notion of equal concern. The “principle of intrinsic value” suggests that it is objectively important that human lives be successful rather than wasted and that this is equally important for each human life.[53] The “principle of personal responsibility” suggests that people are responsible for making their own choices about what type of life to live, and that the state ought not to make ethically based distinctions between what is or is not a good choice.[54] Dworkin acknowledges, however, that despite these two principles, it is impossible for people to engage in political debate completely outside the realm of their deeply held personal convictions.[55] He suggests that, as a result, we must identify widely shared ethical principles of dignity and personal responsibility and then resolve our conflicting political principles by determining which policies or political structures are more securely grounded in those fundamental ethical convictions that are shared by all or most.[56]

In knitting together his two principles of human dignity with the ethical conviction that the value of a good life lies in the inherent value of a skillful performance of living, Dworkin’s theory of liberal equality attempts to maintain a link between personal ethics and political values while honouring the overriding liberal principle of state neutrality between conceptions of the good. If one ascribes to the challenge model of ethics[57] and accepts Dworkin’s principles of human dignity, then, he asserts, one must believe that “a just society is a condition of a good life for the individuals who live within it.”[58] In a nutshell, this is Dworkin’s theory of justice. He arrives at this account of justice by privileging the notion of autonomy. Autonomy (more specifically, the equal distribution of autonomy) is both the foundation and structure of Dworkin’s theory of liberal equality. His liberal ethical system is not premised on the overarching and assumed value of a particular type of life, but rather, it is premised on a particular way of living: the performance of living autonomously.

In what respect does Dworkin’s theory inform the reasoning adopted by Chief Justice McLachlin in Labaye? Dworkin recognizes the need to appeal to ethical convictions of a more general nature in an effort to garner broader appeal or greater consensus. Similarly, Chief Justice McLachlin relies on more general convictions to justify the majority’s decision. In the same way that, for Dworkin, autonomy serves as both the foundation and the structure of his theory of liberal equality, Chief Justice McLachlin relies upon, in order to protect, the fundamental values enshrined in the constitution.[59] This move is well demonstrated by comparing the reasoning of the majority opinion to the dissent in Labaye.

There is a distinction made by Chief Justice McLachlin in her majority opinion that is absent from the dissenting opinion of Justices Bastarache and LeBel. The chief justice distinguishes between societal and private morality, or what Dworkin would describe as third person ethics and first person ethics. She begins her decision by stating that “Canadian law on indecent acts, from its origins in the English common law, has been firmly anchored in societal rather than purely private moral concerns.”[60] Contrary to the dissent’s suggestion, the majority decision is based on fundamental social and ethical considerations: the social and ethical considerations applied in the majority decision are so fundamental to the morality of Canadians that they are entrenched in the constitution.

Recall that Dworkin proposes a principle derived from “instincts and convictions about the character and ends of human life that seem particularly congenial to liberal political principles ... [and that] already form the central part of how many of us imagine living well.”[61] Dworkin seeks an ethical conviction that could serve as common ground for the resolution of other, less agreed-upon principles. Chief Justice McLachlin’s decision in Labaye, and in particular her reliance on the principles underpinning the constitution, does precisely this.[62]

It seems then that Chief Justice McLachlin agrees with the dissent’s first argument—that the scope of harm which the criminal law may target should include moral harm. The discrepancy lies with what type of morality the criminal law ought to enforce. The majority determines that it ought to prevent harm to fundamental values and enforce political morality, not sexual morality. As noted above, however, the dissent argues that activity inconsistent with the community’s sexual morality in and of itself causes harm to Canada’s fundamental values. This argument is centred on the definition of harm under the criminal law and is akin to Devlin’s argument about community. The argument suggests that harm occurs to the community as a whole, even if no individual is directly harmed, when the first person ethical convictions or personal moralities of most people in the community are transgressed by a minority of people who do not hold such convictions. The dissent argues in favour of the community standard of tolerance test for indecency on the basis that it is a product of the “values characteristic of the entire community.”[63] They contend that indecency may occur even in private where there is no harm to anyone, including the participants; they do so based on the assertion that indecency laws are about “what Canadians would not abide other Canadians doing.”[64] Presumably, the argument is premised on the conviction that a society is more than the sum of its individual parts and that the value in this collectivity—the gestalt of a society—cannot be protected simply by upholding (in whatever form) the rights of a society’s individual members.

Can harm be caused simply by the contravention of those sexual mores that are dominant in a society? If so, does the majority’s decision overlook, or fail to protect us from, harm of this sort? One liberal response to this question is to justify such harm as the “cost of freedom”. This is Dworkin’s response to the tension between freedom of speech and protection of women’s equality rights in the pornography debate.[65] He suggests that in the face of such tensions, a difficult political choice has to be made and the American constitution reflects a choice to privilege liberty (to be more specific, negative liberty). However, the Canadian constitutional tradition does not privilege liberty to the same extent.[66] Regardless, this argument does not adequately capture the essence of Chief Justice McLachlin’s reasoning in Labaye. Her divergence from a purely negative liberty argument is clearly demonstrated by two aspects of her decision. First, the values she identifies include dignity and equality in addition to liberty and autonomy. Second, and more significantly, she identifies three distinct types of harm that threaten these values: harm to the liberty of those involuntarily confronted with and offended by sexual displays, harm to the individual participants, and the harm of predisposing individuals to anti-social behaviour. This last category subsumes the notion of attitudinal harm, which occurs when degrading images diminish the public’s respect for certain groups.[67] Protecting against the possibility of attitudinal harm would not fit well within a cost-of-freedom claim.[68]

A liberty claim about the cost of freedom does respond to community-oriented critiques, but it remains a rights-based claim that inevitably privileges the individual. Under such a claim, the value of community is located in the fact that individuals can form a cohesive unit to protect individual autonomy. Therefore, autonomy remains the foundation for human flourishing. This type of liberty claim is in fact a social contract–type claim about the law’s legitimacy, under which the individual—through the concept of rights—remains paramount.[69]Labaye and Kouri, however, do not truly concern the protection of individual rights. Unless one drastically expands the concept of sexual privacy, reinterprets the concept of an equality-seeking minority group, or endorses a right to a much broader conception of liberty under section 7 of the Charter (which the Supreme Court of Canada refused to do in Malmo-Levine), the notion of rights does not really capture the essence of the legal issue at play in these cases.

Both Labaye and Kouri involve charges related to members of the sexual majority engaging in sexual acts, in groups, in semi-public settings. These cases redefine indecency in a manner that decriminalizes sexual activity by heterosexual couples paying a cover charge or membership fee to gain entrance to a bar or club where they can have semi-public sex in large groups. The ability to legally act on these desires is not based on equality rights, expressive rights, or privacy rights. The patrons of Coeur à Corps were not gathering to celebrate their shared minority identity or to build a sense of community, which might be argued in the case of a gay bar or bathhouse. Labaye stipulates that the law ought not to interfere with the exercise of people’s desire to engage in these types of semi-public group sexual acts (or to make a bit of cash off of other people’s desire to do so). This was not because swingers belong to a sexual minority which has historically faced oppression by the sexual majority, not because of the (sexually) expressive content conveyed by group sex, and not because the state has no place in the bedrooms of our nation—after all, these activities did not occur in the bedroom.

Instead of invoking the notion of rights, Chief Justice McLachlin invokes the notion of constitutional democracy.[70] It is not that a consideration of individual rights is irrelevant to her decision, but that her reasoning is not accurately characterized as a simple, liberal-rights balancing analysis. Her decision is not communitarian or even perfectionist.[71] Rather, there is a nuance to her reasoning (or perhaps the implications of her reasoning) which may be more responsive to the dissent’s concern over protecting the intangible worth offered by the gestalt of a community. Part II will discuss the manner in which Chief Justice McLachlin’s invocation of constitutional principles maintains the importance of community by promoting the community’s common interests in both tolerance and sexual desire.

II. Tolerance, Iconoclastic Sex, and Common Goods

In what respect is Labaye’s approach to the values of community and collectivity in the definition of indecency distinguishable from straightforward liberal arguments? Joseph Raz suggests an answer to this question in his distinction between public interests and common goods.[72]

Under Raz’s approach, the common good is a good that benefits everyone in a given society (albeit to varying degrees), while the public interest is based on a resolution of the conflicting interests of various citizens. He uses the examples of pollution-free air and a network of railway tracks to illustrate this distinction. There may be a public interest in a system of railway tracks. This interest is held not only by railway users but also by other members of the public, such as railway employees. However some people may derive no benefit from this good and others may actually be adversely affected by the railway’s existence. The railway may, for instance, cause them to endure noise, pollution, or a decline in the value of their properties. This does not mean that there is any less of a public interest in the existence of a viable railway system.[73] Raz contrasts this public interest with a common good such as the existence of clean air: “Everyone has a health interest which benefits from unpolluted air. The benefit is noncompetitive (one person’s enjoyment is not at the expense of anyone else), and it is similar in nature for everyone.”[74]

Neither common goods nor public interests can necessarily be claimed as rights.[75] However, given that common goods benefit everyone in a community in the same way, it would make sense to suggest that the state, if it is to act in the interests of the community, must act in a manner consistent with the community’s common goods.[76] If this is the case, then where common goods are at stake, so long as the state adopts policies or enacts and interprets laws in pursuit of such common goods, some notion of community is maintained and recognition of the value in collectivity is reflected in these laws and policies. Therefore, a definition of indecency and obscenity which serves a common good would be consistent with recognition of the role and importance of community and responsive to the dissent’s community-based objection to the majority’s definition.

There are two interrelated common goods served by the majority’s revised definition of indecency in Labaye. As outlined below, these common goods are tolerance and the iconoclastic legal recognition of sexual desire.[77]

A. Tolerating Group Sex

The first, tolerance, is related to another type of good Raz discusses: shared goods. Raz defines shared goods as “goods whose benefit for people depends on people enjoying the good together and thereby contributing to each other’s good.”[78] He uses parties or dances as examples of shared goods; such events are only enjoyable for their participants to the extent that they can be enjoyed together. The sexual activities occurring at L’Orage and Coeur à Corps would be of this shared character. After all, these cases were not about the acts of individuals; at issue was the decency or indecency of “orgies”, to use the term employed by Chief Justice McLachlin.[79]

Shared goods, however, are not to be confused with common goods. Common goods are those that serve the same interest of every person in a noncompetitive way. The ability to legally engage in group sex in a semi-public setting does not serve the interests of every person in Canada. While it is a shared good among those who desire to engage in group sex in semi-public settings, it is not a common good. However, “one particularly important type of common good is the cultivation of a culture and a social ambience which make possible a variety of shared goods, that is, a variety of forms of social association of intrinsic merit.”[80] The common good referred to here is the availability of an adequate range of shared goods; in the context of indecency and obscenity, the ability to choose one’s forms of social (sexual) association.[81] The difficulty with recognizing this common good, and it relates to an issue discussed below in terms of the subjectivity of valuation, is ascertaining which forms of social association are of intrinsic merit. The social ambiance that Raz suggests is in the common good makes possible a variety of social forms of intrinsic merit. Recognizing the malleable nature of the common good is not a suggestion that “anything goes”, “variety is the spice of life”, or “the more the merrier”. Rather, the value of a diversity of opportunities in terms of sexual interactions can only sustain the majority’s definition of indecency against the dissent’s “critique of community” if the types of sexual associations the definition decriminalizes are of intrinsic merit.

But how are we to know whether the group sex conducted at L’Orage or Coeur à Corps has intrinsic merit? That is to say, in cultivating diverse social forms and eclectic sexual associations, how does one know which shared goods society ought to make available? I want to leave this question for the moment in order to explore the more general, but related, common good at issue here: the common good of tolerance. It is a common good to live in a tolerant society; in other words, we all benefit from living in a tolerant and nondiscriminatory society.[82] This point becomes clearer “when we think of the failings of societies other than our own.”[83] Raz uses the example of an apartheid society and the ways in which such a system detrimentally affects the lives of all of its members.

[An intolerant society] colours the nature of the social relations each can have. It threatens to make each member complicitous with its bigotry through association with bigots, through involvement in projects which involve the display of prejudice and the practice of discrimination. It imposes duties actively to fight prejudice and discrimination in one’s own society in order not to be tainted by its failures through membership in it; duties which are burdensome and limit one’s ability to pursue other options.[84]

The common good of living in a society not operating under a system of apartheid is apparent. To think of an extreme, analogous to an apartheid society in the context of sexual intolerance and repression, one might consider the treatment of women under the Taliban’s regime in Afghanistan, or perhaps less controversially, the fictional, futuristic theocracy of Margaret Atwood’s sexually repressed Republic of Gilead in The Handmaid’s Tale:

What’s going on in this room ... is not exciting. It has nothing to do with passion or love or romance or any of those other notions we used to titillate ourselves with. It has nothing to do with sexual desire ... Arousal and orgasm are no longer thought necessary; they would be a symptom of frivolity merely, like jazz garters or beauty spots: superfluous distractions for the light-minded.[85]

The common good of living in a society that has not relegated the female orgasm to the status of unnecessary trend from a bygone era seems obvious. Less clear for some is the common good of living in a society that tolerates sexual practices the majority of Canadians find disgusting, depraved, repulsive, and immoral. As Raz notes, tolerance is not the approval of many incompatible forms of life; it is not synonymous with pluralism: “[t]oleration is a distinctive moral virtue only if it curbs desires, inclinations and convictions which are thought by the tolerant person to be in themselves desirable.”[86] According to this theory, sexual tolerance is not demonstrated by people tolerating a particular sexual act even though it is an act which they would never engage in. Sexual tolerance is exercised by people tolerating a sexual act of which they disapprove.

Chief Justice McLachlin’s definition of indecency and obscenity requires that we not criminalize as indecent or obscene any sexual act or depiction without an associated harm even if we find it repulsive, digusting, immoral, and of no intrinsic merit. Contrast this with the dissent’s approach to the definition of indecency and obscenity: “[s]ocial morality, which is inherent in indecency offences and is expressed through the application of the standard of tolerance, must still be allowed to play a role in all situations where it is relevant.”[87] The dissent’s suggestion that Canadian law should continute to criminalize sexual conduct purely on the basis that it is immoral from a majoritarian perspective (i.e., it is harmless to others but would nonetheless be considered immoral by most citizens’ first person ethics), cannot be an act of tolerance. To tolerate sexual conduct and depictions despite considering them to be immoral is to act out of tolerance; it is to protect the common good of a tolerant society. To limit such tolerance to harmless activities is to act in the public interest. Chief Justice McLachlin rejects the traditional “community standard of tolerance”, and in doing so, she instead sets a standard of tolerance for the community; a standard which our constitution dictates is necessary to avoid being tainted by membership in an intolerant society. Her definition demands a standard of tolerance from the community that is in the common good or interest of each of us to pursue, and that is incumbent upon any state dedicated to acting in the interests of the community to maintain.[88]

B. The “Liberated Couple”: An (Anti-)Icon to Come?

Setting aside the common good of living in a tolerant society, and returning now to the related issue of the intrinsic worth or worthlessness of the sexual activities engaged in at L’Orage and Coeur à Corps, a number of questions arise. Having acknowledged that group sex itself cannot be considered a common good in Canadian society, does Chief Justice McLachlin’s decision indentify an intrinsic value beyond the common interest in promoting tolerance?

In fact, there may be an evaluation of the “shared goods” produced at L’Orage and Coeur à Corps (and Chief Justice McLachlin’s approach to them) which, when considered from a slightly different perspective, suggests that they are sufficiently possessed of intrinsic worth so as to be useful to the common good of cultivating an ambiance of eclectic social (sexual) associations.[89] The difficulty, however, is in determining what standards can justly evaluate the potential worth of shared goods.

Raz suggests that specific forms of excellence belong to a kind,[90] and he explains that two elements determine how items or activities can be evaluated for intrinsic merit:

First is the definition of the kinds of goods to which they relate, which includes the constitutive standards of excellence for each kind. Second are the ways the item relates to the kinds. It may fall squarely within them. Or it may, for example, relate to them ironically, or iconoclastically, or as a source of allusions.[91]

In other words, something may be evaluated based not only on how neatly it fits within the standards of excellence for its genre but also based on how it relates to its genre.

As Raz suggests, one way in which an item, activity, or law can relate to its genre is iconoclastically. An iconoclast is one who challenges traditional or popular ideas or institutions on the basis that those beliefs or institutions are wrong. Iconoclasm is not the same as subversion. Unlike subversion, iconoclasm is about the formation of meaning. Iconoclastic transgression takes place within a cultural construct, not externally to it. Iconoclasm is the intentional destruction, within a culture, of one of the culture’s own icons, symbols, or meanings. Unlike subversion, which aims simply to deconstruct, iconoclasm’s purpose is to attack a cherished belief by relying on a new or different cherished belief. This is why iconoclasm has the capacity to be a shared good; it is about the collective, and it is done often for political (or religious) reasons.

Illuminating the distinction between iconoclasm and the notion of queer theory (because of its reliance on the concept of subversion) helps to illustrate how iconoclasm accommodates new meaning, rather than simply disrupting old meaning.[92] While the postmodern method of deconstruction used by queer theorists is, in certain analytical instances, methodologically helpful, it is somewhat self-destructing.[93] The strong deconstructionist approach within queer theory makes it an unlikely intellectual tool in the search for the “intrinsic worth” of any shared good. Most importantly, queer theory does not allow for the notion of genre-based evaluation. Judgment in kind necessitates the identification and affirmation of categories and is antithetical to queer theory, and deconstruction generally.

The distinction between an iconoclastic approach and a queer approach is real. An iconoclast dissents against a popular belief or tradition on the grounds that it is in error. To disrupt cherished beliefs about sex, or to dissent against traditional sexual mores on the basis that they are wrong, is not to contest the normative validity of sexual mores, the possibility of meaning, the existence of categories, or the ability to judge—quite the opposite in fact. An iconoclastic approach to the legal regulation of sexuality, unlike a queer approach, acknowledges the inevitability of judgment; it recognizes the social fact that an icon, once shattered, will undoubtedly and expediently be replaced by a new icon. For this reason, an iconoclastic approach is better able to account for, contest, and at times work within the liberal political context in which the legal regulation of sexuality operates in Canada’s constitutional democracy.[94]

If the evaluation of the sexual activities engaged in at L’Orage or Coeur à Corps is based on the iconoclastic effect they have on the legal regulation of human sexuality or sexual expression, then it may be possible to evaluate the value of decriminalizing them without facing the task of establishing the standards of excellence for sex. That is to say, if, in the context of legal regulation, the evaluation of a given sexual act is based on whether, and the way in which, it challenges traditional or popular ideas about sex, then the benefit or detriment of the act is its effect. The assessment of an act’s value is relational. It is dependent on there being a genre and a standard of evaluation for that genre, but it is not dependent on what that standard is. It is not that iconoclasm is presumptively good. Rather, the benefit or detriment of iconoclasm is the process of reconsideration that its transgression perpetuates.

This reasoning entails two interrelated normative assumptions. Firstly, it entails an assumption that there exist standards of excellence for sex, albeit standards that are constantly evolving and shifting, and due to their relational nature, that are plural in form.[95] In other words, there need not be (nor could there be) one standard of excellence for sex; however, in any and all sexual contexts there must (and will) be criteria of evaluation for sex.[96] Secondly and correspondingly, it entails an assumption that some degree of sexual dissent, of challenge to sexual forms, and of this process of openness, is required in any society.[97] The evaluation of how much, and when, dissent would be good, because it too is a relational concept, can be determined by resorting to an external standard, such as a harm principle or the promotion of community tolerance, rather than relying on a standard of excellence that is internal to the genre itself. In other words, it is possible to assess the value of decriminalizing group sex without attempting to articulate a coherent account of what constitutes excellent sex (or excellent group sex).

So can the reasoning adopted by Chief Justice McLachlin in Labaye be evaluated based on its relation to human sexuality? Does it produce an iconoclastic impact such that it serves the common interest in a way that responds to the critique of community?

C. Laws of Desire

In fact, given that an iconoclastic decision challenges and replaces cherished beliefs, the Court’s decisions in Labaye and Kouri represent some of the most iconoclastic jurisprudence to date regarding the legal regulation of sexuality in Canada. In their outcome, these cases challenge two of the most significant pillars of the regulation of sex in our society. These decisions transgress the heavily fortified sexual boundary between the public and private realms, and they also challenge the taboo against the commodification of sex. Most significantly, they do so without relying on claims of antisubordination, identity, privacy, or safety.

Jeffrey Weeks suggests that our culture often justifies erotic activity on some basis other than desire, such as reproduction or the consummation of relationships.[98] The same could be said with respect to the law’s relationship to sexuality. The law typically adopts an approach to sexual desire and erotic activity that focuses on rights, responsibilities, and personal morality. Legal analyses concerning issues of sexual activity and human sexuality are most frequently framed as either claims to privacy,[99] claims to expressive rights,[100] or claims of identity (or more generally, antisubordination).[101] In the case of sexual minorities, legal arguments and analyses typically focus on claims of identity or relationship recognition. In the case of sexual liberty, the emphasis is usually on claims that reify the public/private division or claims premised on the expressive rights held by individuals. The legal recognition of the bodily pleasures behind or outside of an identity, relationship, or sanctuary is infrequently claimed and less frequently, if ever, granted.

However as noted earlier, privacy rights, expressive rights, and identity claims fail to aptly characterize the reasoning in Labaye. Both Labaye and Kouri consider sexual activity in a semi-public setting.[102] Neither one involves a group of sexual actors that could reasonably be described as a sexual minority, and neither case involves claims regarding freedom of expression.

The jurisprudential construction of sexuality—what sex means in the context of its relationship to the law—has taken many forms. At different times and in different legal contexts, sex has been about morality, religion, identity, privacy, and class. It has been about health, gender, expression, violence, family, and love. At one point, it was even about communism.[103] The jurisprudential construction of sexuality has never really been about the recognition of pleasure or desire. Labaye therefore changes, at least to some degree, the meaning of the legal regulation of sexuality in Canada.

In Labaye, Chief Justice McLachlin states that “[s]exual activity is a positive source of human expression, fulfilment and pleasure.”[104] A review of prior case law defining obscenity demonstrates that legal recognition of the significance of sexual pleasure was not the focus (or even a focus) of analysis prior to Labaye. In 1962, when the Supreme Court of Canada first grappled with the British common law definition of obscenity in a case involving the novel Lady Chatterley’s Lover, the analysis focused on the merits and demerits of legal censorship.[105] The Court in Brodie did not concern itself with the sexual fulfillment and pleasure of Lady Chatterley, her lover, or the book’s readers. In 1985[106] and 1992,[107] when the Court revisited the definition of obscenity, the focus was on incorporating a notion of harm into the Court’s analysis of the community’s attitude toward a particular sexual act or depiction. Desire, pleasure, and fulfillment were not taken into account.

In 1997, claims about pleasure and desire were actually made by the appellant bookstore and certain interveners in Little Sisters.[108] The Court, however, did not endorse these claims. Little Sisters involved a constitutional challenge to obscenity laws based on the discriminatory manner in which customs officials applied the laws to gay and lesbian material imported by Little Sister’s Book and Art Emporium. The bookstore brought its challenge on the basis of freedom of expression as well as an equality claim based on sexual orientation. Underpinning the equality argument in Little Sisters (which was premised on the assertion that pornography figures differently in gay and lesbian communities than in straight ones) was a claim about desire—same-sex desire, specifically. The Court rejected this equality claim.[109]

It may be that, for doctrinal reasons, the Court was not well situated in any of these pre-Labaye cases to give recognition to the significance of desire and sexual pleasure. Given the other section 15 jurisprudence regarding sexual orientation that was developing during the time that Little Sisters was decided, it is not surprising that the Court was unwilling to accept arguments suggesting that the sexual needs (for pornography or particular sexual depictions) or the sexual acts of gays and lesbians were different than those of heterosexuals. More generally, it may be that until the Court had rejected the community standards of tolerance test there was no conceptual space for considerations of desire. Considerations regarding desire and sexual pleasure are more easily incorporated into a definition of indecency centred on actual, proven harm to sexual participants or other members of society as measured against the values of liberty, dignity, equality, and autonomy, but not so easily where harm is measured by the community’s standard of tolerance.

As is the case with respect to the prior case law regarding obscenity, the Supreme Court of Canada cases defining indecency before Labaye and Kouri cannot be said to have given rise to a legal recognition of sexual desire. For example, the lap dancing trilogy of the 1990s, R. v. Tremblay,[110]R. v. Mara,[111] and R. v. Pelletier,[112] all involved charges against tavern owners whose performers gave lap dances or private shows of some sexual variety. In Mara and Pelletier, the Court found, applying the community standard of tolerance test, that the acts were not indecent. In Tremblay, the Court found that the lap dances did go beyond the community standard of tolerance. None of these decisions appears to take into consideration, as Chief Justice McLachlin did in Labaye, that sexual activity is a source of pleasure. This may, however, be due in part to the factual patterns which gave rise to the indecency charges in these cases: they each involved the explicit exchange of money for sexual contact of some type.[113] It would perhaps have been surprising had the Court provided reasoning which suggested a legal recognition of sexual desire in cases involving the exchange of money for sexual contact where sexual desire is presumably not experienced by both or all of the sexual participants.

Although Labaye also involves an exchange of money for sex, in the form of cover charges and membership fees, the interrelationship between sex, money, and desire differs from all of these older cases. Labaye involves reciprocal rather than unilateral sexual desire. Also, unlike in these older cases, it involves people paying money to have a sexual interaction, but where money is paid by all of the sexual actors to a third party. Money is not the motivating factor for any of the sexual participants; mutual desire to engage in sexual activity is the motivating factor. It is for this reason—the mutual desire of the sexual participants—that Chief Justice McLachlin determined that the commercial element of these activities was not a factor suggesting that the activities were indecent.[114] What distinguishes the exchange of sex for money in Labaye from the exchange of sex for money in the lap dancing trilogy (where the exchange of sex for money was most certainly a determining factor under the community standards of tolerance test) was the role and type of desire.

Labaye and Kouri stipulate that, absent an associated and provable harm, the law ought not to interfere with the exercise of a sexual desire—even, in some circumstances, a sexual desire that takes place in semi-public settings and includes a commercial element. The intrinsic worth of the shared goods offered at L’Orage and Coeur à Corps is manifested through the Court’s decisions. The fact that desire may be beyond reason and rationality, and therefore not susceptible to valuation, does not suggest that the social forms that stem from drives or capacities that exceed the limits of reason cannot be evaluated based on arguments regarding the standards of excellence for those social forms or their iconoclastic implications for those standards. The recognition of desire is a recognition, by law, of something outside itself—something outside of the law. Further, a legal recognition of desire is itself prima facie iconoclastic because the law’s legitimacy is premised on reason. The iconoclastic effect of these social forms is reflected in the legal recognition of these pleasure-seeking activities by the highest court in the country. Iconoclasm is not found simply in the fact that these forms of human relations transgress dominant sexual norms—many forms of human relations may and do possess intrinsic worth (or are detrimental) for reasons of their own. Their emergence, however, has resulted in a change and shift in the law’s relationship to human sexuality. In Labaye and Kouri, the Supreme Court of Canada shattered a long held and stridently protected legal and social belief that a legitimate exercise of the criminal law power can be premised, either directly or indirectly, on sexual morality. In doing so, the Court recognized (if not for the first time, then in a novel way) the value of desire.

The legal recognition of desire changes the law’s relationship to sexuality and provides new meaning to the legal regulation of sex. In other words, it is iconoclastic. But iconoclasm is not presumptively good. Why would this particular iconoclastic jurisprudence be a common interest? Why is changing the relationship between law and sexuality, such that it recognizes the value and significance of sexual pleasure, an iconoclastic benefit and not a detriment?

Establishing that the legal recognition of desire changes the law’s relationship to sexuality, replaces old meaning and forms new meaning regarding the legal regulation of sex—in other words is iconoclastic—does not alone make it a common good. Iconoclasm is not presumptively good. What makes this particular iconoclastic jurisprudence a common interest? Why does changing the relationship between law and sexuality, such that it recognizes the value and significance of sexual pleasure, produce an iconoclastic effect of benefit and not of detriment?

Francisco Valdes identifies the defence of desire as the next strategic move in the pursuit of “sex/gender reform and equality”.[115] He notes that “intimacy and desire are ‘affirmations of life [and therefore] are diametrically opposed to dogmatic regimes’ such as the dominant Euro-American sex/gender system.”[116] As such, he suggests (speaking from a pre–Lawrence v. Texas[117] American legal context, and specifically within a claim to the right to sexual privacy) that human intimacy and desire are neither frivolous nor legally insignificant. Whether it is cross-sex or same-sex desire, he argues that the defence of desire may be the most significant contribution queer theory[118] has to offer:

The tactic of defending desire thus commits Queer legal theory to winning respect for the range of yearnings regarding consensual affection and intimacy that are felt by all humans in one form or another. But because desire is not rational in the Western sense, this tactic also commits Queer legal theory to engaging the law beyond the limits of (legal) rationality. This tactic or method calls forth a joy in and for humanity that is distinct, though not separate, from the notions (and the limits) of reason or logic that characterize the very culture of the law. In this sense, this tactic may be the most radical or subversive contribution of Queer legal theory to critical legal thinking; defending desire effectively calls for us to “come out of the closet” with respect to human pleasure and its worth.[119]

What common good (that is not already met through a rights paradigm) is served when the meaning of sexuality within the context of its legal regulation changes in this way? That is to say, what common good is served when law “‘come[s] out of the closet’ with respect to human pleasure and its worth”?

For one thing, a legal recognition of the worth in human pleasure serves the common good of human flourishing. That is to say, a focus on desire and pleasure (in conjunction with harm) locates well-being and human flourishing as central to the law’s concern in this context. It allows legal analysis to take primary consideration of the quality of people’s lives. Incorporating concepts of pleasure and desire into the law’s conception of sexuality reveals a more nuanced and truthful account of this human activity—an activity the ubiquity of which is matched only by the historical degree to which as it has been socially and legally regulated.

Conclusion

Laws which finally recognize sex as having the capacity to be positive, pleasurable, and fun reflect a reality that the law has not tended to reveal. This is significant not simply for its celebration of one of the very positive aspects of our humanity, but also because the law’s capacity to better recognize, account for, and reflect the good of sex might also lend itself to a capacity to better account for and reflect the bad of sex (particularly for women, children, and sexual minorities). Most significantly, a legal capacity to better reflect these sexual realities might eventually facilitate a greater ability to handle those complex and difficult legal circumstances in which pain and pleasure, desire and fear, intersect, overlap, and at times blur.[120]

The decisions of the Supreme Court of Canada in Labaye and Kouri establish an understanding of the regulation of public sex that is based in morality and that acknowledges the value of community. Chief Justice McLachlin’s reasoning, far from relegating Canadian values to the private domain, invokes our generally agreed-upon, fundamental ethical convictions for the very purpose of protecting them, and she does so in a manner that continues to recognize the importance of community and collective interests without subjugating minority desires to majoritarian sexual morality. Chief Justice McLachlin relies upon principles reflected in the constitution—principles such as autonomy and equality—to redefine the legal regulation of public sex in a manner that removes it from the community standard of tolerance test. She establishes a standard that regulates sexual activity based on principles considered to be agreeable to all or almost all members of a liberal society. In this way, her reasoning provides a convincing liberal response to the dissent’s communitarian objection to ridding the law of the community standard of tolerance.

Moreover, her decision responds to the dissent’s critique of community in another manner. Labaye and Kouri are not premised on claims of identity, privacy, or expression, and therefore they actually represent the potential for a more significant shift in the jurisprudence. This interpretation of her decision identifies the iconoclastic implications of her reasoning and illuminates a shift in the legal regulation of sexuality towards an accommodation of concepts of pleasure and the significance of sexual desire. The reasoning in Labaye thus protects our common interests in tolerance and human flourishing, achieved through the recognition and affirmation of sexual pleasure, bound by both sexual dissent and liberal judgment.