R. v. Labaye (J.-P.), (2005) 342 N.R. 304 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 18, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 342 N.R. 304 (SCC);2005 SCC 80

R. v. Labaye (J.-P.) (2005), 342 N.R. 304 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2005] N.R. TBEd. DE.030

Jean-Paul Labaye (appellant) v. Her Majesty The Queen (respondent)

(30460; 2005 SCC 80; 2005 CSC 80)

Indexed As: R. v. Labaye (J.-P.)

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

December 21, 2005.

Summary:

The accused was convicted of keeping a "com­mon bawdy" house for the "practice of acts of indecency" under s. 210(1) of the Criminal Code. The charges related to the operation of a club established to facilitate group sex. The accused appealed.

The Quebec Court of Appeal, in a decision reported 191 C.C.C.(3d) 66, dismissed the ap­peal and upheld the conviction. The ac­cused appealed again.

The Supreme Court of Canada, Bastarache and LeBel, JJ., dissenting, allowed the ap­peal and quashed the conviction.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Supreme Court of Canada stated that "in­decent criminal conduct will be estab­lished where the Crown proves beyond a reason­able doubt the following two re­quirements: 1. 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: (a) con­fronting members of the public with con­duct that significant­ly interferes with their autonomy and liberty; or (b) predis­posing others to anti-social behaviour; or (c) phys­ically or psycholog­ically harming persons involved in the conduct, and 2. That the harm or risk of harm is of a degree that is in­com­patible with the proper functioning of society" - The court stated that the cat­egories of harm capable of satisfying the first branch of the inquiry are not closed, nor was any one of the listed categories in itself an integral part of the definition of harm - See paragraph 62.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The ac­cused operated a members and guests only swingers club where couples and single people could meet each other for group sex - Members were screened and informed of club activities and paid an annual member­ship fee - The club had three floors - The first floor had a bar, the second a salon, and the third the "apart­ment" of the ac­cused, which could only be accessed by club members using the appro­priate code - Patrons voluntarily had group sex on mat­tresses scattered about the floor of the apartment - The accused was con­victed of keeping a "common bawdy" house for the "prac­tice of acts of in­decency" under s. 210(1) of the Criminal Code - The accused appealed - The Supreme Court of Canada allowed the appeal and quashed the convic­tion - The court, applying a two step harm based test for what constituted indecency, held that the conduct in issue did not meet the first branch of the test (i.e., the conduct did not constitute harm or present a signifi­cant risk of harm to individuals or society) - There was therefore no need to proceed to the second branch of the test dealing with the degree of harm; however, the court opined that there appeared to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society - The court stated that "consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and toler­ant as Canadian society" - See para­graphs 62 to 72.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Supreme Court of Canada discussed the his­tory of the test for criminal inde­cency and stated that the court in R. v. Butler (1992) and Little Sisters Book & Art Em­porium v. Canada (2000) had moved from a com­munity standards test to a two step harm-based test (i.e., step one dealing with the nature of the harm and step two deal­ing with the degree of harm) - The court elaborated on the test emerging from But­ler and gave guidance to judges on how to apply the test - See paragraphs 32 to 62 - The court stated that this test "applied objectively and on the basis of evidence in successive cases as they arise, is directed to articulat­ing legal standards that enhance the ability of persons engaged in or facili­tating sexual activities to ascer­tain the boundary between non-criminal conduct and criminal conduct. In this way, the basic requirements of the criminal law of fair notice to potential offenders and clear enforcement standards to police will, it is hoped, be satisfied" - See paragraph 63.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Supreme Court of Canada adopted a two step harm-based test for criminal indecency within the meaning of s. 210(1) of the Crim­inal Code - The first require­ment con­cerned the nature of the harm (i.e., harm to individuals of society con­trary to society's norms) - The court stated that to ground criminal responsibility, the harm had to be one which society formally recognized as incompatible with its proper functioning - The requirement of formal societal recog­nition made the test objective - The inquiry should not be based on individual notions of harm, nor on the teachings of a particu­lar ideology, but on what society, through its fundamental laws, had recognized as es­sential (e.g., the claim that a particular sexual conduct violated particular religious rules or values would not alone suffice to establish this element of the test) - See para­graphs 31 to 42.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Su­preme Court of Canada adopted a two step harm-based test for criminal indecency within the meaning of s. 210(1) of the Crim­inal Code - The first require­ment con­cerned the nature of the harm (i.e., to ground criminal responsibility, the harm had to be one which society formally recognized as incompatible with its proper func­tioning) - The court stated that three types of harm have thus far emerged from the jurisprudence as being capable of sup­porting a finding of indecency: (1) harm to those whose autonomy and liberty may be re­stricted by being confronted with inap­propriate conduct; (2) harm to society by predisposing others to anti-social con­duct; and (3) harm to individuals partici­pating in the conduct - The court stated that each of these types of harm was grounded in val­ues recognized by our Constitution and sim­ilar fundamental laws - The court elab­orated on each type of harm and stated that if harm in any of these senses was estab­lished beyond a reasonable doubt, the in­quiry then pro­ceeded to the second step of the test (i.e., to determine the degree of the harm) - The court cautioned that list was not closed - However, thus far, these were the types of harm recognized by the cases -The court stated also that reference to the fundamen­tal values of the Constitu­tion and similar fundamental laws could also be used to eliminate types of conduct that did not constitute a harm in the re­quired sense - See paragraphs 36 and 51.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Su­preme Court of Canada adopted a two step harm-based test for criminal indecency with­in the meaning of s. 210(1) of the Crim­inal Code - The first require­ment concerned the nature of the harm, while the second requirement concerned the de­gree of the harm (i.e., harm incom­patible with the proper functioning of Canadian society) - The court elaborated on step two of the test, stating that the threshold was high - "It proclaims that as members of a diverse society, we must be prepared to tol­erate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to inter­fere with the proper function­ing of so­ci­ety." - The determination of this issue in­volved value judgments - See paragraphs 52 and 53.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What consti­tutes - Criminal Code, s. 210(1) - The Su­preme Court of Canada adopted a two step harm-based test for criminal indecency with­in the meaning of s. 210(1) of the Crim­inal Code - The first require­ment con­cerned the nature of the harm, while the second requirement concerned the degree of the harm (i.e., the determina­tion of whether harm incompatible with the proper functioning of Canadian society) - The court stated that this determination in­volved value judgments, but that did not mean that the decision-making process was subjective and arbitrary - "First, judges should approach the task of making value judgments with an awareness of the danger of deciding the case on the basis of unar­ticulated and unacknowledged values or pre­judices. Second, they should make val­ue judgments on the basis of evidence and a full appreciation of the relevant factual and legal context, to ensure that it is in­formed not by the judge's subjective views, but by relevant, objectively tested criteria. Third, they should carefully weigh and articulate the factors that produce the value judgments. By practices such as these, objectivity can be attained." - See paragraphs 53 and 54.

Criminal Law - Topic 872

Disorderly houses - Bawdy-houses - Keep­ing a common bawdy-house - What con­sti­tutes - Criminal Code, s. 210(1) - The Supreme Court of Canada adopted a two step harm-based test for criminal in­de­cency within the meaning of s. 210(1) of the Crim­inal Code - The first require­ment concerned the nature of the harm, while the second requirement concerned the de­gree of the harm (i.e., the determina­tion of whether harm incompatible with the proper functioning of Canadian society) - The court stated that it was important for judges to evaluate the nature of the con­duct in light of contemporary Canadian stan­dards and only if the impact of the acts in degree of harm posed a real risk of damaging the autonomy and liberty of mem­bers of the public, judged by contem­porary standards, could indecency be estab­lished - The court elaborated further on this branch of the test - See paragraphs 55 to 61.

Criminal Law - Topic 873

Disorderly houses - Bawdy-houses - Bawd­y - What constitutes - Indecent acts - [See all Criminal Law - Topic 872 ].

Cases Noticed:

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [paras. 2, 91].

R. v. Mara (P.) et al., [1997] 2 S.C.R. 630; 213 N.R. 41; 101 O.A.C. 1, refd to. [paras. 10, 83].

R. v. Hicklin (1868), L.R. 3 Q.B. 360, refd to. [para. 15].

Brodie v. R., [1962] S.C.R. 681, refd to. [para. 17].

R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103 (Man. C.A.), revd. [1964] S.C.R. 251, refd to. [paras. 19, 91].

R. v. Towne Cinema Theatres Ltd., [1985] 1 S.C.R. 494; 59 N.R. 101; 61 A.R. 35, refd to. [paras. 20, 82].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, appld. [paras. 21, 88].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [paras. 21, 95].

R. v. Tremblay et autres, [1993] 2 S.C.R. 932; 156 N.R. 30; 57 Q.A.C. 161, refd to. [paras. 43, 83].

R. v. Provincial News Co. et al., [1976] 1 S.C.R. 89; 3 N.R. 492, refd to. [para. 91].

R. v. Dechow, [1978] 1 S.C.R. 951; 16 N.R. 204, refd to. [para. 91].

R. v. Germain, [1985] 2 S.C.R. 241; 62 N.R. 87, refd to. [para. 91].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 104].

Roux v. R., [2001] R.J.Q. 567 (C.A.), refd to. [para. 118].

R. v. Pelletier, [1985] R.J.Q. 595; 27 C.C.C.(3d) 77 (S.C.), refd to. [para. 121].

R. v. Angerillo, [2003] R.J.Q. 1977 (Mun. Ct.), refd to. [para. 123].

R. v. Jacob (G.) (1996), 95 O.A.C. 241; 31 O.R.(3d) 350 (C.A.), refd to. [para. 128].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 210(1) [para. 1].

Authors and Works Noticed:

LeBel, Louis, Un essai de conciliation de valeurs: la régulation judiciaire du dis­cours obscène ou haineux (2001), 3(2) Ethique publique 51, p. 57 [paras. 85, 135].

Mill, John Stuart, On Liberty and Consid­erations on Representative Government (1946), p. 8 [para. 105].

Counsel:

Robert La Haye and Josée Ferrari, for the appellant;

Normand Labelle, for the respondent.

Solicitors of Record:

Robert La Haye, Montréal; Pariseau, Oli­vier, Montréal, Quebec, for the appellant.

City of Montréal, Quebec, for the respon­dent.

This appeal was heard on April 18, 2005, by McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The decision of the court was rendered in both official languages on December 21, 2005, when the following opinions were filed:

McLachlin, C.J.C. (Major, Binnie, Des­champs, Fish, Abella and Charron, JJ., concurring) - see paragraphs 1 to 72;

Bastarache and LeBel, JJ., dissenting - see paragraphs 73 to 154.