Naturism and The Law - Legal Rights

The following does not constitute legal advice. In order to arrive at legal understanding, it is necessary to know much more than wording in the Criminal Code (some of which have been around for well over a hundred years) or in excerpts from criminal trial opinions.

Section 173

  1. Everyone who willfully does an indecent act in a public place in the presence of one or more persons,or (b) in any place, with intent thereby to insult or offend any person,
    1. is guilty of an indictable offence and is liable to imprisonment for a trem of not more than two years; or
    2. is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more then six months.
  2. Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years
    1. is guilty of anindictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
    2. is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
“Willfully” means “deliberate” or “intentional,” as opposed to “accidental” or “inadvertent”; and it is not further necessary to show that the accused knew and intended to perform the indecent act in the sight of others. (Miceli (1977), Ontario Provincial Court)

Section 173 in its entirety from the Government of Canada's website.

Section 174

  1. Everyone who, without lawful excuse,
    1. is nude in a public place, or
    2. is nude and exposed to public view while on private property…is guilty of an offence...
  2. For the purpose of this section, a person is nude who is so clad as to offend against public decency or order.

Notes:

This offence is not aimed at conduct such as swimming nude at an isolated beach, even where the accused misjudges the loneliness of the beach. (Benolkin et al., 1977)

No proceedings shall be commenced under this section wothout the consent of the Attorney General.

Section 174 in its entirety from the Government of Canada's website.

Response from the Federation of Canadian Naturists

Even if it were applied reasonably and consistently, the present law is unsatisfactory in that it embodies the idea that nudity per se is somehow “indecent” and likely to cause “harm” to anyone who might see a nude person. Many feel that such an attitude is completely unjustified and outmoded, and in fact reflects a prejudice against the human body.

It is completely unsatisfactory that a person quietly sunbathing on a beach or in a home back garden has to take extraordinary measures to avoid being observed and avoid any resulting  unpleasantness complaints. And in spite of the statement that there is no offence when at in isolated beach, the reality is that there remains the risk of harrassment by law officials and the laying of criminal charges.

It is totally inappropriate, and indeed absurd, that a woman who removes her top on a warm day should be treated as if she could possibly harm anyone. It is beyond the reason of any thinking person, and insulting to women. An excellent first step was taken in Ontario when Gwen Jacob was acquitted of indecency in December 1996 for walking topfree about Guelph. See the following article for details of the Jacob decision. Unfortunately, not all provinces have explicitly recognized these rights. Currently, British Columbia is in a position almost as advanced as Ontario.

Given the present situation, we feel that this is a crucial time for the voices of all who support the freedom to be nude to be heard. Nudist groups across Canada are joining with us in a campaign to preserve our nudist rights.


Womens’s Top-free Rights Entrenched in Ontario—Gwen Jacob

Summarized by Stéphane Deschênes from articles in the Globe & Mail, Toronto Star, Toronto Sun, Canadian Press, Windsor Star, Southam News, and Kitchener-Waterloo Record, December 1996.

On December 9th, the Ontario Appeal Court reversed the 1991 conviction of Gwen Jacob for indecency. Jacob, at the time a university student, had walked bare-breasted through the streets of Guelph in 1991 in order to protest the inequality of current law.

The appeal court overturned her conviction because “There was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her. I cannot conclude that what the appellant did exceeded the community standard of tolerance when all of the relevant circumstances are taken into account.”

The three judges did not completely agree on the scope of the law. They all agreed that Jacob had not committed an indecent act. However, Judge Osborne and Mr. Justice Allan Austin suggested that acts could be indecent without having a sexual purpose. Judge Weiler on the other hand, believes that the question is whether an act would be considered sexual by a reasonable bystander. She said that the exposure of breasts in our society does not automatically mean that the act is being done for sexual gratification.

Jacob’s lawyer, Margaret Buist, had argued that she had a constitutional right to go topless since men could. However, the court did not deal with the constitutionality issue in its ruling.

Background

Gwen Jacob said she decided to challenge society’s perceptions after she saw a group of men playing sports without their shirts on a blistering hot day. The more she thought about the inequality of the situation, the more determined she became. She said in an interview that “these were social constraints I’d challenged mentally, but had never done so publicly.&rldquo;

She was charged with indecency on July 19, 1991, the second day of walking home top-free in the city of Guelph during 33C weather. The police were acting on the complaint of the mother of several young children. The mother had been concerned about the impact on her children who had seen the 19 year old student topless.

After a very public trial, Jacob was found guilty of this criminal offense and fined $75. The judge didn’t take seriously her claim that women’s breasts are simply fat tissue and no different than men’s. The judge explained that a women’s breast is “a part of the female body that is sexually stimulating to men both by sight and touch.” He therefore deduced that it was appropriate to restrict their public exposure.

The Ontario Court’s General Division upheld the ruling. This second ruling in 1992 inspired protests across the country including one on Parliament Hill in Ottawa. In these protests several women and men walked topless while thousands of onlookers watched.

This is actually the second ruling acquitting women of indecency when bearing their breasts. At one of the 1992 protests in Waterloo, Ontario, five women and a teenager were arrested for bearing their breasts in public. Judge McGowan acquitted them by saying that today’s society could deal with women exposing their breasts as long as it wasn’t part of lewd or sexually erotic behaviour.

Implications

With two acquittals as precedent, one from the Ontario Appeal Court, it seems clear that the current law is now unenforceable.

Jacob’s lawyer, Margaret Buist said “women now have the right in this province to do the same thing that men do: Walk down a street top-free on a hot summer’s day.” She further said that women can now go topless on beaches, in public parks, or while walking to the store without fear of being arrested.

The Toronto Sun reported that “Metro Police said that if thousands of women decided to let it all hang out, they’d abide by the court’s ruling.”

Sgt. Barry Brenham who patrols Toronto’s beaches said “If the court says it’s acceptable behaviour then it’s acceptable - case law is the law.”

Acting Inspector Mike Sale suggested to the Toronto Sun that they have better things to do than force women to keep their tops on. He said “If it’s the will of a number of people to do something the courts have found to be lawful then police won’t focus on it.”

Southam news went on to say that while the ruling was technically only binding in Ontario, it could carry some weights in the courts of other provinces.

Ontario’s Attorney General, Charles Harnick, said that unless the crown appeals the conviction, the law prohibiting women from going bare-breasted no longer exists. Harnick has 30 days to file an appeal to the Supreme Court of Canada but says he will be reviewing the case and consulting crown attorneys before making that decision.

It is interesting to note that this course of events is very similar to those which many European countries took decades ago. Their challenges led to widespread acceptance of top-free rights. Hopefully, Canada will follow a similar path towards body acceptance.

Reactions

Many reactions were predictable although most seem to be surprisingly supportive.

Gwen Jacob was one of the happiest. After five years, her conviction and fine have finally been overturned. She said in a statement that it is now up to individual women to decide when and where to “express the freedom to remove our shirts.”

“Changing a prejudicial law is the first step in changing society’s perceptions. If we do not wish to be perceived as sex objects, we need to control the context in which we present our bodies as sexual.”

“If we continue to allow society to define our physical bodies as strictly sexual, we will never get beyond that limited means of expression. We will never be more than slaves to our gender.”

She said that “The original victory for me was that I took my shirt off, the rest was red tape.”

Jacob, who wrote her statement while nursing her 16-month-old child, said that she hopes that her one day her daughter will ask “What was all the fuss about?” when she learns of this case.

The government’s reaction was, as could have been predicted, cautious and non-committal.

Ontario Premier Mike Harris (Conservative) said that he personally doesn’t like the idea of women going around topless. “...it’s just been my own personal view” said Harris.

“I personally have never felt that it is (appropriate), but I’m not a lawyer and I’m not a judge.”

When asked about designating topless beaches, Harris said “In my own view that would be better than what this ruling appears to mean.”

Dianne Cunningham, Ontario’s minister responsible for women’s issues, expressed surprise by the ruling. “I think everybody will be surprised by this ruling. It is not acceptable in our society for a lot of reasons.”

She went on to say that there while there may be some women who will go topless, she believes that most people would be offended by it.

The New Democratic Party’s women’s issues critic, Marilyn Churley, was supportive of the decision from an equal rights point of view but didn’t think that the majority of women are going to go around topless. She went on to add that maybe neither men nor women should be allowed to go around the street stripped to the waist.

Liberal MPP Sandra Pupatello didn’t agree with the scope of the ruling but seemed to support nude beaches. “There are a lot of places to be able to express yourself in public. Nude beaches are certainly one of them and down Main Street just simply is not,” she said.

The Mayor of Toronto, Barbara Hall said that the city had not intention to try to restrict women walking topless through local by-laws.

One of the most supportive stances was from the Toronto Star. “But a chest is just a chest, hairy or not. Nobody has to stare, Mr. Harris” reported the Star in their December 12th editorial.

The Toronto Sun reported that, based on their poll, Torontonians are not ready although the ruling is a step in the right direction.

The most negative quote came from Dolina Smith of Canadians For Decency. She said, “What community’s standard of tolerance were they using? A nudist colony?” Her group believes that this ruling will lead to an erosion of community values.

The Future?

A week after the ruling it seems that public opinion is generally supportive. I think that in most people’s minds, this just isn’t a big issue. We are hardly the first country to accept top-free rights. In fact, we are about 20 years behind Europe.

Let’s show our support for top-free rights by letting Ontario politicians know that breasts and bodies don’t have to be sexual. Lets remember that one of our species’ identifying characteristic is that we are mammals—we feed our young from our mammary glands. That’s what our breasts are really all about.