SCCDECISION
NEWS RELEASE - NEWS RELEASE - NEWS RELEASE - NEWS RELEASE
Dec 21, 2005 For immediate release
A Major Change in Canadian Sex Law:
Today's Supreme Court of Canada Decision
The Supreme Court today signaled an important change in Canadian law governing sexual expression, and one that will significantly affect the activities of sex-positive groups, including The Sex Party.
Several Canadian criminal laws prohibit "indecent" conduct. Until today those provisions were applied by police officers and courts to prohibit a broad range of consensual, adult sexual activities, including group sex parties in homes, bars or clubs, and erotic art and entertainment in bars, clubs and galleries. The indecency laws also affected Sex Party fundraising events.
Up until now, the test for "indecency" was largely one of "explicitness" - the more visible the sexual act, even to an entirely consenting audience, the more likely it would be ruled "indecent". But merely because sex is visible does not mean it harms anyone, and the indecency rule offended the democratic principle that the state should only prohibit conduct that is proven to be harmful.
In its new decision, the court establishes harm as the core test in determining the illegality of consensual sexual expression. In no previous case involving consensual sex has the court been so clear in requiring the Crown to prove harm to gain a conviction, and in defining the nature of that harm.
The case involved prosecutions against group sex activities, one in a private club, the other in a licensed bar. The Court found that because only a willing audience could see the sexual conduct and because the activity did not promote anti-social attitudes and was not harmful to the participants, it was lawful.
The new decision will affect many sex-positive groups, including The Sex Party. The vagueness of the "indecency" prohibitions was one of the reasons The Sex Party has been reluctant to take its erotic art and performance fundraising show to communities outside Vancouver. Now there is no longer a basis for any police force or prosecutor to argue that the SAVY (Sex Art Vote Yes!) event infringes the Criminal Code.
The Supreme Court decision will also affect The Sex Party's current and anticipated litigation. In ruling that harm must be the basis for sexual prohibitions, Canada's top court has given the Party powerful new grounds to fight bureaucratic prohibitions, such as those imposed by the BC Liquor Manager and by Canada Post, based merely on the degree of explicitness, not harm.
The Sex Party is also in the early stages of preparing to challenge Canada's shameful prostitution prohibitions. The new decision also gives opponents of Canada's anti-prostitution laws new grounds on which to base a Charter attack.
For the full text of the Supreme Court decision, go here.